Martin Ferris (Kerry North-West Limerick, Sinn Fein)
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Question 139: To ask the Minister for Jobs, Enterprise and Innovation if the contracts of the 15 former Airtricity employees, who would be affected by a contract within the terms of a tender recently submitted by a company (details supplied) to provide public lighting to Galway, Mayo, Roscommon, Leitrim and Sligo County Councils, are entitled under EU law to transfer current employment conditions to a new subcontractor under the TUPE transfer of undertakings legislation. [32441/11]

Richard Bruton (Dublin North Central, Fine Gael)
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The current Irish law in the area of "transfer of undertakings" is the European Communities (Protection of Employees on Transfer of Undertakings) Regulations 2003 – Statutory Instrument (S.I.) No. 131 of 2003. The Regulations implement the mandatory (i.e mandatory to transpose) provisions of EU Council Directive 2001/23/EC of 12 March 2001 which is aimed at safeguarding the rights of employees in the event of a transfer of an undertaking, business or part of a business to another employer as a result of a legal transfer (including the assignment or forfeiture of a lease) or merger. Also, section 21 of the Employees (Provision of Information and Consultation) Act 2006 transposed a provision of European Directive 2001/23/EC relating to the information to be provided by the original employer to the new employer.

In any particular case, it is open to individuals to seek legal advice to determine if the specifics of their particular situation might constitute a Transfer of Undertaking. In the event of a claim being submitted to the State's employment dispute resolution service, it would be a matter for a Rights Commissioner to determine in law if any particular case does in fact constitute a transfer of undertakings situation.

While my Department cannot provide legal advice in respect of any specific case, I would point out that the European Commission has issued a guidance document on European Court of Justice (ECJ) rulings in the area of transfer of undertakings and outsourcing or contracting-out. That document indicates that the ECJ has found that in a situation where a services contract for a labour-intensive service such as office cleaning or security services (as distinct from an assets-based service such as public transport where other ECJ rulings apply) has been outsourced and where the contract subsequently moves to a new contractor, it may be considered a "transfer of undertakings" for the purposes of the Transfer of Undertakings Directive. This would be predicated on the new employer taking over a major part, in terms of their numbers and skills, of the employees specially assigned by the previous contractor to the provision of the services in question.

However, as indicated above, the circumstances of each individual case would have to be considered by a Rights Commissioner, in the first instance, in the light of all previous case law, including ECJ case law. Any such case should be taken within six months of the date on which an employee considers that there has been a contravention of the Transfer of Undertakings Regulations.

An application to a Rights Commissioner can be made by the employee, or by a representative (including a trade union representative) by contacting the Rights Commissioner Service of the Labour Relations Commission, Tom Johnston House, Haddington Road, Dublin 4, or phone 01 6136700.